When two parties negotiate a contract, they generally are more focused on a positive outcome than the “what-ifs” that might occur during the course of the relationship. While many contracts are placed in a drawer after execution as the project runs its course without incident, it is the lawyer’s role to provide in the contract a means for dealing with problems if they do arise.
One provision that can go unnoticed during negotiations is the force majeure clause. As seen with Hurricane Sandy, a cautious approach may be wise. Force majeure, literally “a superior force,”1 is often described as an event or cause that is beyond a party’s reasonable control and is traditionally employed to address “acts of God,” such as hurricanes, like Sandy, and floods, as well as “acts of people,” such as terrorism, strikes and wars.
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